Judge says sentencing process not fair

Wednesday

Oct 31, 2007 at 12:01 AMOct 31, 2007 at 6:34 PM

Eric Fodor

Using the case of an Eldorado woman who pleaded guilty to methamphetamine distribution as his case-in-point, Judge J. Phil Gilbert on Tuesday took federal prosecutors to task for their practices in honoring plea agreements.

Saying the U.S. Attorney's office dangles plea agreements that are "illusory" in front of defendants, Gilbert challenged the internal workings of the prosecutor's office.

"It is a culture that has been going on in this district for eight or nine years," Gilbert said after a hearing Tuesday.

Part of the problem is the Southern District of Illinois – which includes the federal courts in East St. Louis and Benton – has had seven U.S. attorneys in seven years, Gilbert said.

But even the anger of a federal judge is unlikely to keep Katie Heath from serving a long sentence in a federal penitentiary, perhaps 20 years, though she has already served time in the Illinois Department of Corrections on a different charge stemming from the same offenses. Her federal case made it all the way to the Seventh Circuit Court of Appeals in Chicago -- a step below the Supreme Court -- with that court siding with prosecutors and saying they have wide discretion in how they honor plea agreements. But that did not stop Gilbert from giving the U.S. Attorney's office a piece of his mind before stepping down from the case.

Heath, 28, Eldorado, was indicted in Benton Federal Court, with others, on April 18, 2006 on charges of conspiracy to manufacture, distribute and possess with intent to distribute over 500 grams of methamphetamine in Saline County and elsewhere. She was paroled from the state Department of Corrections four months earlier after serving one year of a four-year sentence for unlawful possession of methamphetamine. The federal indictment arose from the same misconduct as the state prison sentence, Gilbert said.

Heath faces an extended sentence of 20 years because the U.S. Attorney's office filed a motion calling for a sentence enhancement due to her prior time in the IDOC.
Heath tried to plead guilty in federal court on May 4, but Gilbert delayed acceptance of the negotiated plea to give her a chance to cooperate fully with authorities, he said. A common part of a negotiated guilty plea in Benton Federal Court is an agreement the defendant will cooperate with the prosecutor's office on other cases. In exchange, the prosecutor may file a motion asking the judge to give a sentence lighter than the required 20 years, provided prosecutors think the cooperation was useful enough. The prosecutors may file such a motion before or after sentencing, known as a Section 5K1.1 motion and a Rule 35 motion respectively. Prosecutors may also not file the motion at all. The possible sentence reduction is substantial -- normal federal sentence guidelines call for 135 months to 168 months -- just over 11 years to 14 years in a case like Heath's. Federal sentences are handed down in months.

Gilbert said in court Tuesday the boilerplate plea agreement offered by the U.S. Attorney's office is "illusory" because the government implies a sentence reduction is possible and encourages defendants to talk to federal agents while there is no realistic chance, at least in this district, of any motion being filed later.

"They are not agreements at all, except for the defendants," Gilbert said.

The U.S. Attorney's office appealed Gilbert's decision staying the guilty plea to the Seventh Circuit Court of Appeals in Chicago, which ruled against Gilbert.

Once she was indicted, Heath started cooperating with prosecutors almost immediately. She has complied with bond conditions, talked with federal agents about other cases and met her state parole requirements, Gilbert said. She has been drug-free since her first screening in May 2006. She is holding down a job, going to college and trying to raise her child, who was born in prison, Gilbert said.

But due to of a motion by the U.S. Attorney's office to enhance her sentence because of the prior conviction, Gilbert has no choice but to sentence her to 20 years in prison and hope the U.S. attorney offers some sort of sentence reduction motion after the sentence has been handed down, Gilbert said.

"James Evans, one of Katie Heath's co-conspirators, was sentenced to 168 months and his relevant conduct was higher than Katie Heath's and both had a prior criminal history. He cooperated with federal authorities and a Rule 35 motion was filed after he was sentenced, which will result in the U.S. Attorney's office asking for one-third off the sentence, resulting in a sentence of 112 months, Gilbert said. Asking for one-third off the sentence in a Rule 35 motion is the usual procedure in this district, Gilbert said.

"Talk about disparate and uneven sentencing. Something is wrong with that picture," Gilbert said.

However, the ruling by the appeals court has left judges with little role when a plea agreement is presented in court, Gilbert said.

"Well, the court of appeals has said, 'not much' and ducked the issue as to whether the court can decide that a plea agreement is illusory," Gilbert said.

"Although defendants have obligations and responsibilities to perform according to its terms, for all practical purposes, the government has no such obligation."

The practice of prosecutors holding out an empty promise is common in this district, Gilbert said. In neighboring districts, the frequency of motions to reduce sentences is much higher. In 2006, 17.4 percent of defendants in the Seventh Circuit and 14.4 percent nationwide received lighter sentences under Section 5K1.1 motions, compared to only 5.35 percent of defendants in this district, Gilbert said.

"The paltry few 5K motions we have in this district have nothing to do with adopting a hard-nosed litigating strategy (as suggested in the Seventh Circuit Court of Appeals opinion in this case) but everything to do with the culture in this district of preventing judges from sentencing according to guidelines and statutory factors, especially when mandatory minimums are involved," Gilbert said.

The Seventh Circuit appeals court judges said the defendant could have objected to the plea agreement or changed her plea if she felt something is amiss in the prosecutor's office.

"But that is where my colleagues don't understand the reality of life in the district court, at least in this district, where she can't express any such reservations for fear the government will then say that she is not cooperating and has violated her plea agreement," Gilbert said. "She would then lose all hope of getting any sentence less than 20 years in prison. In this district, even meritorious objections will render a defendant's cooperation incomplete in the eyes of the government."

Gilbert said the actions of prosecutors in this case distort what Congress had in mind by passing mandatory minimum sentencing laws.

"If you put the facts and circumstances of this case in front of the 535 members of Congress, I would bet not one of them, including the most ardent law-and-order member, would say that a 20-year sentence would be just or fair for Katie Heath," Gilbert said.

According to Gilbert, U.S. Attorney Randy G. Massey has stated the judge cannot know what help Heath has given or will give to prosecutors in other cases and does not need to know about his office's internal decision-making processes -- a position with which the Seventh Circuit Court of Appeals agrees. However, Gilbert said his review of files associated with the Heath case indicate 62 people were involved in related conspiracies. Of those, 23 were federally indicted and have pleaded guilty, been sentenced or are awaiting sentencing; 28 have not been indicted anywhere; 11 were charged in state court with meth-related crimes, with two of those cases being dismissed, eight pleading guilty and one still pending, Gilbert said.

"Since her conspiracy ended over two years ago one can logically assume the federal government has decided to give those individuals a pass on prosecuting them, which is entirely within their prerogative and proper exercise of their prosecutorial discretion," Gilbert said.

Grand juries have met 48 times since Heath's arrest, which means there were plenty of chances to charge the people not yet indicted in the meth conspiracies, Gilbert said.
"It makes me wonder who is left for her to testify against if everyone else indicted in her conspiracy and related conspiracies has already pled, been sentenced or they are not being charged," Gilbert said.

Gilbert suggested the indictment might have been handed up four months after Heath was released from state prison as an act of revenge.

"From other cases I have seen in the past where the facts and circumstances have been similar, common sense and experience tells me the only reason Katie Heath was prosecuted at all is because she wouldn't cooperate with agents after she was released from state custody. They obviously knew about her previous drug activities while she was in state prison and if she was some big meth queen deserving to go to federal prison for 20 years, why would the government wait until she hit the streets for almost four months after her release before indicting her," Gilbert said.

"Now I don't know if that happened or not, but if her only sin was not talking to the agents, does that warrant a 20-year sentence, especially in light of the fact that she already has been punished and spent time in prison for essentially the same conduct?" Gilbert said.

Before stepping down from the case, Gilbert apologized to Heath for making her what he called the "the poster child for what is wrong with our federal sentencing structure as it relates to the power that government attorneys have over the sentencing process."

Gilbert also told Heath remaining on the case would only cause her more misery -- he suspects the U.S. Attorney's office will use Heath as an example to show who is in control of sentencing, Gilbert said.

"I am concerned that even in light of your cooperation they won't file a Rule 35 just because I would be the judge to rule on it," Gilbert said.

The judge also suggested the U.S. Attorney's office is driven by conviction statistics rather than the pursuit of justice.

"To the government you are nothing more than a statistic. To this court, you are a person who deserves to have your case prosecuted objectively, and as much as the law allows, individualized so that your punishment fits the crime," Gilbert said.
Heath tried her best to keep her chin up after the hearing.

"I appreciate Judge Gilbert's comments and I am going to keep the faith. This is going to continue with a new judge," Heath said.

Fodor my be contacted at the e-mail address efodor@yourclearwave.com or by telephone at 618-253-7146 Ext. 233.